“Air Focus” means Air Focus Pty Ltd (A.C.N. 623 138 018), its successors and assigns or any person acting on behalf of and with the authority of Air Focus.
“Client” means the person(s) ordering the Works as specified in any quotation, invoice, document or order, and if there is more than one, Client is a reference to each Client jointly and severally.
“Goods” means all Goods supplied by Air Focus to the Client as described on any invoice, quotation, document or order (and where the context permits, includes any supply of Services as defined below).
“Price” means the Price payable for the Works as agreed between Air Focus and the Client in accordance with clause 4 of these Terms.
“Services” means all Services supplied by Air Focus to the Client and includes any advice or recommendations (and where the context permits, includes any supply of Goods as defined above).
“Site” means the land and premises owned, occupied or used by the Client, or any premises where the Works are situated and/or supplied.
“Terms” means these terms and conditions of trade together with any quotation, purchase order, invoice or other document expressed to be supplemental to these Terms, as amended or replaced.
“Works” means all materials, Goods and Services supplied by Air Focus to the Client as described on any invoice, quotation, document or order.
2. Consumer Law
2.1. Nothing in these Terms are intended to have the effect of contracting out of any applicable consumer protection legislation including the Australian Consumer Law (“ACL”) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations except to the extent permitted by those Acts where applicable.
2.2. Where the Client orders Works as a consumer, these Terms are subject to any laws or legislation governing the rights of consumers and will not affect the consumer’s statutory rights.
3.1. The Client is taken to have accepted and is immediately bound, by these Terms when the Client places an order for or accepts delivery of any Works.
3.2. These Terms may only be amended with Air Focus’ prior written consent and will prevail to the extent of any inconsistency with any other document or agreement between the Client and Air Focus.
4. Price and Payment
4.1. At Air Focus’ sole discretion the Price will be either:
4.1.1. as indicated on invoices provided by Air Focus to the Client in respect of Works supplied;
4.1.2. subject to 4.2, Air Focus’ quoted Price.
4.2. Air Focus reserves the right to change the Price in the event that the Works are varied for any reason, unforeseeable or unknown circumstances or as a result of increases to Air Focus’ material and labour costs.
4.3. Air Focus’ quotes are valid for 30 days’ after issue unless otherwise specified.
4.4. Air Focus reserves the right to withdraw a quote at any time.
4.5. Unless otherwise agreed in writing, Air Focus’ quotes exclude the following:
4.5.1. the performing of any building work including core boring of holes, patching, painting, flashing and boxing in;
4.5.2. furring in, plinths or platforms;
4.5.3. metered electrical mains brought to a point adjacent to the equipment as required;
4.5.4. alterations to the switchboard or existing mains supply;
4.5.5. condensate drains brought to a point adjacent to the equipment as required;
4.5.6. any costs associated with instructions or requirements by any state or local authority for acoustic testing or treatment of the installed air conditioner or associated equipment;
4.6. The final location of all equipment with respect to local government authorities is the Client’s sole responsibility.
4.7. It is the Client’s responsibility to obtain and cover any costs for any necessary approvals by the body corporate, local authorities or others unless specified in the quotation.
4.8. Payment for all variations must be made in full at their time of completion.
4.9. At Air Focus’ sole discretion:
4.9.1. a non-refundable deposit may be required; and/or
4.9.2. payment is due on, or before, delivery of the Works; or
4.9.3. Air Focus may submit payment claims at weekly, fortnightly or monthly intervals, or in accordance with Air Focus’ specified payment schedule for work performed, including the cost of variations and the value of any Works delivered to the Site but not yet installed.
4.10. Unless otherwise expressly stated in writing by Air Focus, payment is due and payable 7 days’ following the invoice.
4.11. Payment must be made by either [cash, cheque, bank cheque, credit card (plus a surcharge of up to one and a half percent (1.5%) of the Price), direct credit, or by any other method as agreed to between the Client and Air Focus.
4.12. All quoted prices are exclusive of GST unless otherwise stated.
4.13. Air Focus reserves the right to make, without notice, such minor modifications in specifications, designs or materials as it may at its discretion deem necessary or desirable.
5. Default and Consequences of Default
5.1. Overdue invoices may attract interest. Where this occurs, interest will accrue daily from the date when payment becomes due, until the date of payment, at a rate of one and a quarter percent (1.25%) per calendar month, compounding monthly.
5.2. The Client is liable for any dishonour fees incurred by Air Focus as a result of any payment being dishonoured.
5.3. If the Client fails to pay Air Focus’ invoice by the due date:
5.3.1. Air Focus is entitled to suspend all further Works until full payment is made by the Client;
5.3.2. Air Focus may, without prejudice to any of its rights or remedies, immediately terminate any agreement with the Client.
5.4. Upon termination, Air Focus will be released from all liability to deliver any Works to the Client whether paid for or not.
5.5. Where the Works have been paid for or partly paid for and the agreement is terminated because of the Client’s breach, Air Focus is entitled to retain a reasonable sum to cover any damage or loss it has sustained as a consequence of the Client’s breach.
5.6. If the Client defaults in payment of any invoice when due, the Client indemnifies Air Focus from and against all costs and disbursements incurred by Air Focus in pursuing the debt including legal costs on a solicitor and own client basis and any associated collection agency costs.
5.7. Without prejudice to Air Focus’ other rights and remedies, Air Focus is entitled to cancel all or any part of any Client order which remains unfulfilled and all amounts owing to Air Focus will, whether or not due for payment, become immediately payable in the event that:
5.7.1. any money payable to Air Focus becomes overdue, or in Air Focus’ opinion, the Client will be unable to meet its payments as they fall due;
5.7.2. the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
5.7.3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
5.8. Air Focus will not be liable to the Client for any loss or damage the Client suffers because Air Focus has exercised its rights under this clause.
6.1. Air Focus may cancel any agreement to which these Terms apply or cancel delivery of Works at any time before the Works are delivered by giving written notice to the Client.
6.2. If Air Focus cancels delivery on or before 4 weeks before the agreed delivery date, no damages or any other compensation will be payable to the Client.
6.3. If Air Focus cancels the delivery within 4 weeks’ of the agreed delivery date, damages, if any, payable to the Client for non-delivery of the Works will be equal to the losses actually sustained by the Client. However, the total amount of such damages will in no event exceed 5% of the price allocated to the non-delivered Works.
6.4. In the event that the Client cancels the Works, the Client will be liable for any loss incurred by Air Focus (including, but not limited to, any loss of profits) up to the time of cancellation.
6.5. Cancellation of any orders for Goods made to the Client’s specifications or non-stocklist items are not accepted, once production has commenced.
7. Delivery of the Works
7.1. The time for delivery of Goods is not of the essence.
7.2. Any date or period quoted for delivery and or provision is an estimate only and Air Focus will not be liable for any loss or damage whether direct or indirect and whether suffered by the Client or by a third party, resulting from any delay in delivery of or failure to deliver the Goods.
7.3. Delivery of the Goods will be deemed to have occurred at the earliest time that:
7.3.1. the Client or its nominated person takes possession of the Goods; or
7.3.2. Air Focus delivers the Goods to any carrier for delivery to the Client or its nominated person.
7.4. At Air Focus’ sole discretion, the costs of delivery are in addition to the Price and, where applicable, charged to the Client’s account.
7.5. The Client must make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Air Focus will be entitled to charge a reasonable fee for the storage and/or redelivery of the Goods.
7.6. The failure of Air Focus to deliver will not entitle either party to treat this agreement as repudiated.
7.7. The Works commencement date may be reasonably postponed and/or the completion date reasonably extended, at Air Focus’ sole discretion, in the event that:
7.7.1. the Client fails to make a selection;
7.7.2. the Client provides incomplete or incorrect information;
7.7.3. the Client fails to have the Site ready for the Works;
7.7.4. the Client fails to notify Air Focus that the site is ready;
7.7.5. Air Focus is delayed for any reason including as a result of Air Focus’ suppliers.
7.8. The Client must insure the goods against all risk of loss and damage until the Goods have been delivered to the Client or its nominated person.
8.1. Risk in relation to any Goods passes to the Client at the time the Goods are dispatched to the Client.
8.2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Air Focus is entitled to receive all insurance proceeds in respect of the Goods. The production of these Terms by Air Focus will be sufficient evidence of Air Focus’ rights to receive the insurance proceeds without the need for any insurer or other third party acting on behalf of the insurer to make further enquiries.
8.3. Where the Client expressly requests Air Focus to leave Goods outside Air Focus’ premises for collection or to deliver the Goods to an unattended location then such arrangement shall be at the Client’s sole risk and it shall be the Client’s responsibility to ensure that the Goods are adequately insured.
9.1. Air Focus and the Client agree that title to the Goods will not pass until:
9.1.1. the Client has paid Air Focus all amounts owing to Air Focus; and
9.1.2. the Client has met all of its other obligations to Air Focus.
9.2. Receipt by Air Focus of any form of payment other than cash will not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Air Focus’ ownership or rights in respect of the Goods will continue.
9.3. It is further agreed that:
9.3.1. where practicable the Goods will be kept separate and in a manner that makes them readily identifiable as Air Focus’ Goods until the Client has paid Air Focus all amounts owing to Air Focus and all other obligations of the Client have been met;
9.3.2. until such time as title to the Goods has passed from Air Focus to the Client, Air Focus may give notice in writing to the Client to return the Goods or any of them to Air Focus. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods will cease;
9.3.3. Air Focus is entitled to re-direct any Goods whether or not delivery has been made;
9.3.4. if the Client fails to return the Goods to Air Focus then Air Focus or Air Focus’ agent may (as the invitee of the Client) enter upon the Site and take possession of the Goods and the Client agrees that Air Focus has an irrevocable licence to do so;
9.3.5. the Client is only a bailee of the Goods and until such time as Air Focus has received payment in full for the Goods then the Client will hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Air Focus for the Goods, on trust for Air Focus;
9.3.6. the Client must not charge the Goods in any way or grant or otherwise give any interest in the Goods while they remain the property of Air Focus, without Air Focus’ prior written consent;
9.3.7. Air Focus can issue proceedings to recover the Price of the Goods sold notwithstanding that title to the Goods may not have passed to the Client; and
9.3.8. until such time that title in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Air Focus will be the owner of the end products.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1. In this clause references to sections in this clause are to sections of the PPSA.
10.2. The terms "financing statement", "financing change statement", "security agreement", and "security interest" have the meanings given to them by the PPSA.
10.3. The Client acknowledges and agrees that these Terms constitute a security agreement for the purposes of the PPSA and create a security interest:
10.3.1. in all goods that have previously been supplied and that will be supplied in the future from us to you;
10.3.2. the proceeds of any of the items in clause 10.3.1.
10.4. The Client undertakes to:
10.4.1. promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Air Focus may reasonably require to:
10.4.1.1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
10.4.1.2. register any other document required to be registered by the PPSA; or
10.4.1.3. correct a defect in a statement referred to in clause 10.4.1.1 or 10.4.1.2.
10.4.2. indemnify, and upon demand reimburse, Air Focus for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
10.4.3. not register a financing change statement in respect of a security interest without the prior written consent of Air Focus;
10.4.4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Air Focus; and
10.4.5. immediately advise Air Focus of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.5. Air Focus and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms.
10.6. The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.7. The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.8. Unless otherwise agreed to in writing by Air Focus, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
10.9. The Client must unconditionally ratify any actions taken by Air Focus under this clause.
10.10. Subject to any express provisions to the contrary nothing in these Terms is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. Security and Charge
11.1. For the purpose of securing payment to Air Focus, the Client charges all of its real property (including all real property acquired after the date of this agreement and all of its estate and interest therein, in favour of Air Focus with the payment of all sums of money whether present, future or contingent to which the Client may become liable to pay to Air Focus and authorises and consents to Air Focus taking all action necessary to give effect to this security including the lodgement of a caveat upon title of the Client’s real property.
11.2. The Client irrevocably appoints Air Focus and each director of Air Focus as the Client’s true and lawful attorney(s) to perform all necessary acts to give effect to the provisions of this clause including signing any document on the Client’s behalf. The Client indemnifies Air Focus from and against all Air Focus’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Air Focus’ rights under this clause.
12.1. The Client must inspect the Goods on delivery and must within 7 days of delivery (time being of the essence) notify Air Focus of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.
12.2. The Client must afford Air Focus an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way.
12.3. If the Client fails to comply with this clause, the Goods are deemed to be free from any defect or damage.
12.4. Air Focus’ Goods and Services come with guarantees that cannot be excluded under the Australian Consumer Law. For defective Goods, which Air Focus has agreed in writing that the Client is entitled to reject, the Client is entitled to:
12.4.1. to cancel its service contract with Air Focus; and
12.4.2. to a refund for the unused portion, or to compensation for its reduced value.
12.5. The Client is also entitled to choose a refund or replacement for major failures with Goods. If a failure with the Goods or a Service does not amount to a major failure, the Client is entitled to have the failure rectified in a reasonable time. If this is not done the Client is entitled to a refund for the Goods and to cancel the contract for the Service and obtain a refund of any unused portion. The Client is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Goods or Service.
12.6. Air Focus will ensure that all Goods meet current industry standards applicable to noise levels, however Air Focus cannot guarantee that noise levels will remain compliant post-installation due to circumstances beyond Air Focus’ control including weather, lack of maintenance and tampering.
13.1. Returns of stocklist items or Goods will only be accepted at Air Focus’ sole and absolute discretion, and provided that:
13.1.1. the Client has complied with the provisions of clause 12; and
13.1.2. Air Focus has agreed in writing to accept the return of the Goods;
13.1.3. the Goods are returned at the Client’s cost within 7 days of the delivery date;
13.1.4. Air Focus will not be liable for Goods which have not been stored or used in a proper manner; and
13.1.5. the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
13.2. Non-stocklist items or Goods made to the Client’s specifications will not be accepted for credit or return.
14.1. Subject to the conditions of warranty set out in clause 14.2, Air Focus warrants that if any defect in any workmanship of Air Focus becomes apparent and is reported to Air Focus within 12 months of the date of delivery (time being of the essence) then Air Focus will either (at Air Focus’ sole discretion) replace or remedy the workmanship.
14.2. The conditions applicable to the warranty given by clause 14.1 are:
14.2.1. the warranty will not cover any defect or damage which may be caused or partly caused by or arise through:
184.108.40.206. failure on the part of the Client to properly store or maintain the Goods;
220.127.116.11. failure on the part of the Client to follow any instructions or guidelines provided by Air Focus;
18.104.22.168. any use of any Goods otherwise than for any application specified on a quote, order form or other document;
22.214.171.124. the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
126.96.36.199. fair wear and tear, any accident or act of God.
14.2.2. the warranty will be rendered void and of no force or effect if the Goods are repaired, altered or overhauled without Air Focus’ prior written consent.
14.2.3. in respect of all claims, Air Focus will not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
14.3. For Goods not manufactured by Air Focus, the warranty will be the current warranty provided by the manufacturer of the Goods. Subject to the Price being fully paid, Air Focus will take whatever steps are necessary to transfer the manufacturer’s warranty to the Client.
14.4. The Client must provide proof of purchase to make a claim under any warranty.
15. Intellectual Property
15.1. Where Air Focus has designed, drawn, written plans or a schedule of works, or created any Goods for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and Goods will remain vested in Air Focus, and will only be used by the Client at Air Focus’ sole discretion.
15.2. The Client warrants that all designs, specifications or instructions given to Air Focus will not cause Air Focus to infringe any copyright, patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Air Focus against any action taken by a third party against Air Focus in respect of any such infringement.
15.3. The Client agrees that Air Focus may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or Goods which Air Focus has created for the Client.
16. Privacy Act 1988
16.1. The Client agrees for Air Focus to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Air Focus.
16.2. The Client agrees that Maxim may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
16.2.1. to assess an application by the Client;
16.2.2. to notify other credit providers of a default by the Client;
16.2.3. to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and or
16.2.4. to assess the creditworthiness of the Client.
17. Unpaid Seller’s Rights
17.1. Where the Client has left any item with Air Focus for repair, modification, exchange or for Air Focus to perform any other Service in relation to the item and Air Focus has not been paid the whole of the Price, or the payment has been dishonoured, Air Focus is entitled to:
17.1.1. a lien on the item;
17.1.2. the right to retain the item for the Price while Air Focus is in possession of the item;
17.1.3. a right to sell the item and to retain the proceeds of sale.
17.2. The lien of Air Focus will continue despite the commencement of proceedings, or judgment for the Price having been obtained.
18. Building and Construction Industry Security of Payments Act 1999 (NSW)
Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 (NSW), except to the extent permitted by the Act where applicable.
19. Sending Material Electronically
Air Focus is able to send and receive documents electronically. However, as such transmission is not secure, it may be copied, recorded, read or interfered with by third parties while in transit. If the Client asks Air Focus to transmit any document electronically, the Client releases Air Focus from any claim the Client may have as a result of any unauthorised copying, recording, reading or interference with that document, for any delay or non-delivery of any document and for any damage caused to the Client’s system or any files.
20.1. The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any electrical connections (including meter boxes, main switches, circuit breakers and electrical cable) are of suitable capacity to operate the Goods once installed.
20.2. Air Focus is entitled to delay or terminate installation of any Works where Air Focus, in its sole opinion, determines that the Site is unsafe (including instances of asbestos, defective or unsafe wiring or dangerous access to roofing) until Air Focus is satisfied that it is safe for the Works to proceed.
21.1. The Client must ensure that Air Focus has clear and free access to the Site at all times to enable it to undertake the Works.
21.2. Air Focus is not be liable for any loss or damage to the Site (including damage to pathways, driveways and concreted or paved or grassed areas) unless such damage is as a result of Air Focus’ negligence.
22. Underground Locations
22.1. Prior to Air Focus commencing any Works, the Client must advise Air Focus of the precise location of all underground services on the Site including electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables and oil pumping mains.
22.2. Whilst Air Focus will take all care to avoid damage to any underground services, the Client agrees to indemnify Air Focus in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified in accordance with this clause.
23. Limitation of Liability
23.1. Air Focus will be under no liability whatsoever to the Client for any indirect, incidental, special and or consequential loss and or expense (including loss of profit, loss of business or business interruption) suffered by the Client arising out of a breach by Air Focus of these Terms.
23.2. In the event of any breach of these Terms, the remedies of the Client will be limited to damages which under no circumstances shall exceed the Price.
24.1. The Client indemnifies and keeps indemnified Air Focus and its directors, agents and employees against all actions, claims, losses, liabilities, costs or expenses (including egal costs or expenses) which may be brought against or suffered or incurred by any of them, arising directly or indirectly out of or in relation to damage to the Site or in respect of injury to any person at the Site or as the result of a breach of these Terms by the Client.
25. Dispute Resolution
25.1. If there is a dispute between the parties in relation to these Terms, the parties agree to the following dispute resolution procedure:
25.1.1. the complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute.
25.1.2. the parties agree to meet in good faith to seek to resolve the dispute by agreement between them (“Initial Meeting”).
25.2. If the parties cannot agree how to resolve the dispute at the Initial Meeting, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The parties must attend the mediation in good faith, to seek to resolve the dispute. Any attempts made by the parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the parties under these Terms, by law or in equity.
26.1. Air Focus is able to send electronic mail to the Client and receive electronic mail from the Client. The Client releases Air Focus from any claim the Client may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to the Client’s system or any files by a transfer.
27.1. Air Focus may, in its absolute discretion, accept or reject any order placed by the Client.
28.1. These Terms are not intended to create a relationship between the parties of partnership, joint venture or employer-employee.
29.1. The Client must not assign, or attempt to assign, or otherwise transfer, any right arising out of these Terms without the prior written consent of Air Focus.
30.1. Air Focus may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
31. Force Majure
31.1. Air Focus will not be liable for any delay or failure to perform its obligations under these Terms if such delay is due to any circumstance beyond Air Focus’ reasonable control.
32.1. If any provision of these Terms is held to be unenforceable or invalid, then it is to be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision of these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision must be severed from these Terms and the remaining provisions of these Terms remain valid and enforceable.
33.1. The non-exercise of or delay in exercising a right of a party will not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by notice, signed by the party (or its authorised representative) to be bound by the waiver.
34.1. These Terms are issued without alteration, deletion or erasure. The Client acknowledges that no verbal variations have been or will be made to these Terms and any variation must be made in writing and signed by both parties.
35. Governing Law
35.1. These Terms are subject to and construed in accordance with the laws of the State of New South Wales, the state in which Air Focus has its registered office and principal place of business, and the parties submit to the non-exclusive jurisdiction of the courts of the State of New South Wales.
Last updated: 9 April 2020